IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHANE T. BORMAN, 

 

 Plaintiff, 

 vs. Case No. 2:12-cv-509 

 Judge Frost 

 Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

I. Background 

This is an action instituted under the provisions of 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s applications for a period of disability, 

disability insurance benefits, and supplemental security income. This 

matter is now before the Court on plaintiff Statement of Errors, Doc. 

No. 18, and the Commissioner’s Opposition to Statement of Errors

(“Commissioner’s Response”), Doc. No. 21. This matter is also before 

the Court on plaintiff’s motion to remand this action under Sentence 

Six of 42 U.S.C. § 405(g), Plaintiff’s Motion for Remand, Doc. No. 6, 

and the Commissioner’s Opposition to Motion to Remand, Doc. No. 20. 

Plaintiff has not filed a reply in support of either motion. 

 Plaintiff Shane T. Borman filed his application for disability 

insurance benefits on August 7, 2007, and his application for 

supplemental security income on December 8, 2009, alleging that he has 

been disabled since January 1, 1998. PAGEID 162, 170. The claims 

were denied initially and upon reconsideration, and plaintiff 

requested a de novo hearing before an administrative law judge. 

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 An administrative hearing was held on October 15, 2010, at which 

plaintiff, represented by counsel, appeared and testified, as did 

Jennifer Bauk, who testified as a witness, and William Tansey, who 

testified as a vocational expert. PAGEID 72-73. In a decision dated 

November 24, 2010, the administrative law judge concluded that 

plaintiff was not disabled from January 1, 1998, through the date of 

the administrative decision. PAGEID 66. That decision became the 

final decision of the Commissioner of Social Security when the Appeals 

Council declined review on May 7, 2012. PAGEID 39. 

 Plaintiff was 32 years of age on the date of the administrative 

law judge’s decision. See PAGEID 66, 170. Plaintiff has at least a 

high school education, is able to communicate in English, and has no 

past relevant work. PAGEID 65. Plaintiff was last insured for 

disability insurance purposes on December 31, 2008. PAGEID 58. He 

has not engaged in substantial gainful activity since his alleged date 

of onset of disability. Id. 

II. Administrative Decision 

 The administrative law judge found that plaintiff’s diagnosed 

panic disorder is a severe impairment. PAGEID 58. However, that 

impairment neither meets nor equals a listed impairment and leaves 

plaintiff with the residual functional capacity (“RFC”) to 

perform a full range of work at all exertional levels but 

with the following nonexertional limitations: simple 

routine tasks, low-stress jobs, defined as occasional 

decision making and occasional changes in work setting, no 

production rate or quota requirements, and although he 

could be around co-workers, the claimant should not be 

around the public. 

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PAGEID 59-60. The administrative law judge relied on the testimony of 

the vocational expert to find that this residual functional capacity 

allows plaintiff to perform a significant number of jobs in the 

national economy. PAGEID 65-66. Accordingly, the administrative law 

judge concluded that plaintiff was not disabled within the meaning of 

the Social Security Act from January 1, 1998, through the date of the 

administrative law judge’s decision. PAGEID 66.

III. Discussion 

 Pursuant to 42 U.S.C. § 405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is more than a scintilla of 

evidence but less than a preponderance; it is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. Kirk, 667 

F.2d at 536. If the Commissioner's decision is supported by 

substantial evidence, it must be affirmed even if this Court would 

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decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

Plaintiff argues, inter alia, that the administrative law judge 

erred in failing to consider, discuss, or even mention the medical 

opinion of psychologist David R. Bousquet, M.Ed., in determining 

plaintiff’s residual functional capacity.1

 Statement of Errors, p. 1. 

Plaintiff was evaluated by David Bousquet on October 3, 2008. PAGEID

484-91. Plaintiff reported that he frequently experiences panic 

attacks, has difficulty sleeping, suffers from low self-esteem, and is 

depressed, anxious, and frequently angry. PAGEID 485-87. He left his 

previous jobs because he had “a hard time being around people,” 

experienced panic attacks while driving, and “cuss[ed] out [his] boss” 

after experiencing a panic attack. PAGEID 486. Xanax helps “calm[] 

[him] down” and he has not had problems with depression since he 

started taking Lexapro. PAGEID 485-86. 

 Mr. Bousquet described plaintiff as anxious, restless, fidgety, 

and depressed. PAGEID 484, 486. He assigned a global assessment of 

functioning score (“GAF”) of 502

 and diagnosed bipolar I disorder, most 

 

1

 Plaintiff also argues that the administrative law judge erred by failing to 

fully develop the record and by failing to consider that a lack of money or 

insurance was the reason that plaintiff did not consistently take medications 

or attend counseling. Statement of Errors, p. 1. Because the Court 

concludes that the matter must be remanded for further consideration of Mr. 

Bousquet’s opinion, the Court need not and does not consider plaintiff’s 

remaining contentions. 

2

 The GAF scale is a method of considering psychological, social, 

and occupational function on a hypothetical continuum of mental 

health. The GAF scale ranges from 0 to 100, with serious 

impairment in functioning at a score of 50 or below. Scores 

between 51 and 60 represent moderate symptoms or a moderate 

difficulty in social, occupational, or school functioning . . . . 

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recent episode depressed, and post-traumatic stress disorder, chronic, 

and a personality disorder, NOS with dependent and avoidant features. 

PAGEID 488-89. Mr. Bousquet opined that plaintiff was mildly impaired 

in his ability to “understand, follow and remember detailed/complex 

instructions and directions;” moderately impaired in his ability to 

“relate to others including co-workers and supervisors,” “to maintain 

attention and concentration in order to perform simple repetitive 

tasks,” and “to maintain an adequate persistence and pace from an 

emotional and psychological prospective;” and moderately to markedly 

impaired in his “ability to deal with stress and pressures associated 

with day-to-day work activities effectively and adaptively.” PAGEID

490. Mr. Bousquet further opined that plaintiff would likely 

experience an exacerbation of his emotional and psychological problems 

if subjected to stress and pressure. Id. 

 An administrative law judge is required to evaluate every medical 

opinion, regardless of its source. 20 C.F.R. §§ 404. 1527(c); 

416.927(c). However, every medical opinion is not treated equally; 

the Regulations describe three classifications for acceptable medical 

opinions: (1) nonexamining sources;3

 (2) nontreating sources (or 

examining sources); and (3) treating sources.4

 As a one-time 

consultative psychological examiner, Mr. Bousquet is properly 

 

Norris v. Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7, 

2012). 

3

 A nonexamining source is “a physician, psychologist, or other acceptable 

medical source who has not examined [the claimant] but provides a medical or 

other opinion in [the claimant’s] case.” 20 C.F.R. §§ 404.1502, 416.902. 

4

 A treating source is the claimant's “own physician, psychologist, or other 

acceptable medical source who provides [the claimant], or has provided [the 

claimant], with medical treatment or evaluation and who has, or has had, an 

ongoing treatment relationship with [the claimant].” Id. 

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classified as a nontreating source. See 20 C.F.R. §§ 404. 1502, 

416.902 (“Nontreating source means a physician, psychologist, or other 

acceptable medical source who has examined [the claimant] but does not 

have, or did not have, an ongoing treatment relationship with [the 

claimant].”). 

The Social Security Administration gives the most weight to the 

opinions of treating sources; if an administrative law judge does not 

give “controlling weight” to the medical opinion of a treating source, 

she must provide “good reasons” for discounting the opinion. See 

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) 

(quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5); Ealy v. Comm’r 

of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). “However, this 

requirement only applies to treating sources.” Ealy, 594 F.3d at 514 

(citing Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 

2007)(emphasis in original)). With regard to nontreating sources such 

as Mr. Bousquet, “the agency will simply ̔[g]enerally [] give more 

weight to the opinion of a source who has examined [the claimant] than 

to the opinion of a source who has not examined’ him.” Id. (quoting 

20 C.F.R. § 404.1527(d)(1)). See also Smith, 482 F.3d at 875. In 

determining how much weight to give the opinion of a nontreating 

source, an administrative law judge should still “consider factors 

including the length and nature of the treatment relationship, the 

evidence that the physician offered in support of her opinion, how 

consistent the opinion is with the record as a whole, and whether the 

physician was practicing in her specialty.” Ealy, 594 F.3d at 514 

(citing 20 C.F.R. § 404.1527(d)). 

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In the case presently before the Court, the Commissioner argues 

that “a careful reading of the ALJ’s decision reveals that the ALJ did 

mention Dr. [sic] Bousquet’s examination.” Commissioner’s Response, 

p. 10. The Commissioner does not, however, quote any portion of the 

administrative law judge’s decision in support of this argument. 

Rather, the Commissioner argues that the administrative law judge 

adequately considered Mr. Bousquet’s opinion because the 

administrative law judge’s residual functional capacity assessment 

“include[s] several limitations similar to Dr. [sic] Bousquet’s 

opinion” and because the administrative law judge credited “the 

November 2008 opinion of non-examining psychological consultant, Karla 

Voyten, who gave little weight to Dr. [sic] Bousquet’s opinion[].” 

Id. at pp. 10-11. The Commissioner’s arguments are without merit. 

The administrative law judge’s decision does mention, as the 

Commissioner argues, Mr. Bousquet’s “examination.” See PAGEID 63 

(“Furthermore, when the consultative examiner asked the claimant why 

his wife separated, the claimant stated, ̔Because of me not being able 

to work’ (Exhibit 11F, p.2).”), PAGEID 64. However, the 

administrative law judge did not evaluate Mr. Bousquet’s opinion or 

report, but mentioned – only in her consideration of plaintiff’s 

credibility - only a single statement made by plaintiff to Mr. 

Bousquet. See id. This passing reference to Mr. Bousquet’s 

“examination” is not, however, sufficient to satisfy the requirements 

of 20 C.F.R. §§ 404.1527(c), 416.927(c), because the administrative 

law judge referred to only statements made by plaintiff during the 

examination and not to Mr. Bousquet’s “medical opinion.” Compare 20 

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C.F.R. §§ 404.1527(c), 416.927(c) (requiring administrative law judges 

to evaluate every “medical opinion”), with 20 C.F.R. §§ 404. 

1527(a)(2), 416.927(a)(2) (“Medical opinions are statements from 

physicians and psychologists or other acceptable medical sources that 

reflect judgments about the nature and severity of your impairment(s), 

including your symptoms, diagnosis and prognosis, what you can still 

do despite impairment(s), and your physical or mental restrictions.”). 

 There is no indication whatsoever that the administrative law 

judge considered Mr. Bousquet’s “medical opinion.” The administrative 

law judge made no mention of Mr. Bousquet’s medical opinion, nor did 

she consider the evidence offered in support of the opinion, how 

consistent the opinion is with the record as a whole, or whether Mr. 

Bousquet was practicing his specialty. See Ealy, 594 F.3d at 514 

(citing 20 C.F.R. § 404.1527(d)). Although the administrative law 

judge may not be required to expressly articulate the actual weight 

assigned to the medical opinion of a nontreating source, or the reason 

for assigning that weight, nor is the administrative law judge 

necessarily required to expressly articulate “good reasons” for 

discounting the opinion of a nontreating source, see Jewell v. Comm’r 

of Soc. Sec., No. 08-58-DLB, 2008 WL 4656911, at *3 (E.D. Ky. Oct. 21, 

2008), it must be apparent from a fair reading of the administrative 

law judge’s decision that the medical opinions of nontreating sources 

were at least considered. This is not the case here. Furthermore, 

the Commissioner’s arguments to the contrary notwithstanding, see 

Commissioner’s Response, pp. 10-11, the requirement to consider the 

opinion of a nontreating source, 20 C.F.R. §§ 404. 1527(c), 

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416.927(c), is not satisfied, by implication, merely because the 

administrative law judge relied on the opinion of a non-examining 

source who in turn gave little weight to the nontreating source’s 

opinion. 

 Accordingly, it is RECOMMENDED that the decision of the 

Commissioner be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) 

and that this action be REMANDED for consideration of the medical 

opinion of David Bousquet. It is FURTHER RECOMMENDED that Plaintiff’s 

Motion for Remand, Doc. No. 6, be DENIED as moot. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

July 8, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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